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Reflections on the International Conference of Data Protection and Privacy Commissioners in Madrid

As the 31st annual International Conference of Data Protection and Privacy Commissioners wraps up in Madrid, capped by the announcement that next year’s conference will occur in Jerusalem, to be hosted by the Israeli Information and Technology Authority, some reflections:

• Security vs. Privacy There continues to be a tension between the need for security from terrorist and criminal attacks and the right to be free of excessive collection and retention of personal data by governments. This was the focus of the remarks of the Spanish Minister of the Interior and the US Secretary of Homeland Security, and a panel of experts from around the world who concluded that there needs to be greater focus on the need for all of the information that is harvested from citizens. The pre-conference session of The Public Voice organized by the Electronic Privacy Information Center resulted in a Madrid Declaration that warned that "privacy law and privacy institutions have failed to take full account of new surveillance practices."

• Corporate Accountability and New Privacy-Enhancing Technologies Presentations by corporate representatives of Google, Microsoft, eBay, Yahoo!, Procter & Gamble, Accenture and others showed that corporate accountability for privacy (a concept advanced enthusiastically by our friend Marty Abrams of the Center for Information Policy Leadership) is guided not only by the need to be legally compliant but also by the recognition that in our information society, responsible data management will build consumer trust. There was an impressive demonstration of various new technologies that provide greater transparency and more robust notice to individuals about the collection of data about them, and that give them greater control over the collection, use, transfer and retention of personal data. For example, Google unveiled new privacy tools and Jules Polonetsky, my co-chair at the Future of Privacy Forum, illustrated the array of technologies available to protect the privacy of children. The greater demonstration of such “self-regulation” through corporate accountability and the deployment of privacy-enhancing technology was recognized at the conference as an essential pillar of privacy protection.

• US Law and Enforcement In the panel on children’s privacy, John Avila of the Walt Disney Company, gave a compelling overview of the breadth and depth of US legal protections for privacy, which includes COPPA to protect kids, and which he pointed out focuses on the areas of greatest privacy concern (such as financial and health privacy). There were also presentations on the robust enforcement of US privacy laws by the FTC and other authorities, and the innovations in regulation that include, for example, data security breach notification laws which serve as a model for new regulation in Europe. My conversations with various EU Data Protection Commissioners indicated a growing respect for the US scheme of data protection, in stark contrast to the official EU position that the US lacks adequate protections for personal data which prohibit the cross-border transfer of data to the US absent special arrangements (such as Safe Harbor participation, model contracts or Binding Corporate Rules).

• Cloud Computing and the Smart Grid There was a focus on the privacy issues implicated by new technologies such as the next generation of cloud computing and the Smart Grid.

• Cross-Border Harmonization of Regulation Another important theme of the conference concerned cross-border harmonization of privacy regulation, even among countries in the EU that operate under the common principles of the EU Directive but whose laws often reflect differences in detail and application. In that regard, the European Commission is in the process of soliciting views on the new challenges for personal data protection in order to maintain an effective and comprehensive legal framework to protect individual’s personal data within the EU.

As with many such conferences, the value of the formal program was augmented by the opportunity of data protection regulators to meet informally with representatives of civil society, privacy advocates, privacy lawyers, and corporate privacy officials. The interactions over lunch and dinner, and at the wonderful art galleries of Madrid (where tours were made part of the official agenda), allowed for the sharing of perspectives and ideas, and a recognition that no matter which sector is involved, those gathering in Madrid share the commitment to the protection of personal privacy.